Reduced criminal charges and status as an illegal immigrant.  What role may each play in assessing whether the witness who has received reduced charges, or who is an illegal immigrant, is being truthful and accurate?  A recent petition for writ of certiorari  in the United States Supreme Court addresses the former; and a new decision from the New Jersey Supreme Court sets real limits on the second.


REDUCED CHARGES: When a witness testifies, the jury is entitled to learn of the individual’s potential bias – and little more has the potential to generate bias than a criminal charge that has been reduced in exchange for the witness’ testimony.  But to assess bias, must the jury hear how big the avoided punishment was?  Is it enough to say “the charges you faced were dropped from Robbery to Theft,” or is a jury without sufficient information to judge credibility unless it is also told “and Robbery carries a possible 20 year sentence, but Theft carries no more than 5?”

This issue has been submitted to the United States Supreme Court for resolution.  Trent v. United States ( ) presents the case squarely, demonstrates the split in courts at both the state and federal levels, and urges that the Court accept the issue and resolve it.  After explaining the importance of the issue because cooperators testify regularly for significant reductions in sentencing exposure, the Petition contends that the Constitution demands full disclosure:

The specific length of a mandatory minimum sentence that a testifying co-conspirator avoids is powerful evidence of bias; offering a jury mere generalities (such as a  substantial” mandatory minimum) does not convey the magnitude of a witness’s potential bias. On the other hand, the government’s interest in excluding this evidence— asserted fears of jury nullification—are relatively minimal.

The contention that jurors need the specific numbers is unsupported by research or psychological studies but argued anecdotally:

The extent of a cooperating co-conspirator’s motive cannot be properly captured by generic statements describing a “substantial” mandatory minimum or the like. The specific term a witness would face absent the cooperation is essential evidence.

As petitioner argued to the district court, to most jurors, a sentence of one year would seem “substantial.”  See 6/28 Trans. 215-16. A vague term like “substantial” does little to inform the jury as to the extent of a testifying witness’s motive to please the prosecutor. By  contrast, a jury’s impression of a witness would likely be quite different if it learned that, but for the witness’s testimony, he or she is certain to receive a sentence of 20 years (or some other mandatory minimum).

Intriguingly, the Petition relies on trial advocacy texts to bolster its stance.  How the Court will decide – whether to hear the case and what the ruling should be – is only a guess; but the Petition raises a critical Confrontation question and is a useful guide for practitioners, both defense counsel and prosecutors, on the scope of cross-examination.

IMMIGRATION:  Charged with a sexual assault, and testifying in his own behalf, a criminal accused was cross-examined with the question “You’re from Honduras, right?” After defendant said “yes,” the prosecution asked, “And you didn’t come into the United States legally?”  State v. Sanchez-Medina, Nos. A-10, 077883, 2018 N.J. LEXIS 68, at *15 (Jan. 18, 2018) .

Properly, the prosecution conceded on appeal that such questioning should never have occurred.  The New Jersey Supreme Court agreed, vehemently.  Here is the Court’s analysis:

Whether a defendant entered the country legally tells a jury nothing about whether he committed an act of sexual assault. In this case, it is simply not relevant to the offenses for which defendant Sanchez-Medina was on trial.

Even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury.” N.J.R.E. 403. Both today and in late 2013 when this trial took place, evidence of a defendant’s undocumented immigration status could appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system: to evaluate relevant evidence fairly and objectively.

In limited circumstances, proof of a person’s immigration status can be admissible. If the prosecution, for example, promised a witness favorable immigration treatment in exchange for truthful testimony, a jury would be entitled to assess the witness’s credibility in light of that promise. Or if a defendant had lied about his immigration status to obtain government benefits as part of a scheme to defraud, his true status would be relevant to the crime charged. Still, exceptions like those are rare. In most cases, the immigration status of a witness or party is simply irrelevant, and a jury should not learn about it.

Of particular importance, the Court also affirmed that coming into the country illegally is not sufficient to show a character trait of being dishonest for impeachment under Rule 608(b).

The upshot – impeach hard, but impeach fair.